Brendan Smialowski / AFP via Getty Images
- Trump's lawyers say a president can get away with crimes if Congress doesn't find out about it while they're in office.
- If a president leaves before Congress can impeach and convict, they're home free, Trump's lawyers say.
- The Constitution's framers "assumed the risk of under-enforcement," his lawyer told the Supreme Court.
As the saying goes: It's not the crime; it's the cover-up.
If former President Donald Trump gets his way, a good cover-up will be enough.
In arguments before the US Supreme Court Thursday, Trump's lawyer, John Sauer, said a former president can escape criminal culpability so long as they keep their conduct secret from Congress and don't get impeached.
Trump has asked the court to formally recognize sweeping legal immunity for presidents, with his lawyers arguing that impeachment and conviction would be the "gateway" for any potential criminal prosecution.
Such a ruling, Trump hopes, would squash Justice Department Special Counsel Jack Smith's indictment against him, alleging he criminally obstructed Congress with a plot to overturn the results of the 2020 election, which he lost.
In oral arguments Thursday, Justice Amy Coney Barrett asked what would happen if potential criminal conduct wasn't discovered until after a president already left office.
"What if the criminal conduct isn't discovered until after the president is out of office, so there was no opportunity for impeachment?" she asked.
Sauer said the framers of the US Constitution "assumed the risk of under-enforcement" with the system they devised, which Sauer argues requires impeachment first.
"The separation of powers prevents us from righting every wrong, but it does so that we do not lose liberty," Sauer said, quoting the late conservative Supreme Court Justice Antonin Scalia.
Trump was impeached — for the second time — by the US House of Representatives in the final days of his presidency over his attempts to subvert the election.
The US Senate held a trial in February, after he had already left office, and did not reach the two-thirds majority needed to convict him. No US President has ever been convicted after an impeachment.
Smith didn't bring his indictment against Trump until the summer of 2023 — more than two years after Trump left office.
While some of the conduct described in the indictment refers to Trump's open attempts to pressure members of Congress not to certify now-President Joe Biden's win, other elements of the indictment refer to details that were not fully known during his presidency.